“No hidden nasties… No artificial colours or flavours and no aspartame” is defamatory

The supermarket chain Asda sold a range of own brand health foods, some of which were labelled “No hidden nasties”, together with a legend typically reading ”No artificial colours or flavours and no aspartame”.Ajinomoto, a major manufacturer and supplier of the sugar-substitute generically known as aspartame, sued Asda for “malicious falsehood”, also known as trade libel or slander of goods

Three possible meanings were ascribed to the phrase by Ajinomoto:

that aspartame is harmful or unhealthy

that there is a risk that aspartame is harmful or unhealthy

that aspartame is to be avoided.

Asda said that it meant:

that these foods were for customers who found aspartame objectionable.

The trial judge rejected meaning A but found that a substantial number of consumers would derive meaning B (C he said added nothing to B) and a substantial number would derive the “innocent” meaning D.The judge thought that the so-called “single meaning rule” meant that he should not select a pejorative meaning where a non-defamatory meaning is possible, and on that basis Ajinomoto lost its claim.

The Court of Appeal, however, agreed with Ajinomoto and allowed its appeal.The “single meaning rule” was held not applicable to malicious falsehood cases.Reasonable consumers might put both damaging and innocuous meanings on Asda’s health food packaging, and therefore it should be open to Ajinomoto to prove malice (intention to cause harm) in relation to the damaging meaning, and consequential damage.The presumption that words could only have a single meaning was anomalous, unjust and contrary to the trial judge’s findings.

The ruling brings malicious falsehood in line with the English common law action of passing off (also concerned with false representations), for which it is enough to show that the representation fools some of the people, even if not most of them.

Practical guidance: text used on packaging or advertising copy which is capable of having a defamatory meaning will not be saved merely because it may also have an innocent or non-damaging meaning.